Gurudas Datta vs Bholadas Datta

Bhaskar Bhattacharya, J.—These two revisional apolications were heard together as order No. 37 dated June 18, 1999 passed by the District, Alipore in Act 39 Case No. 344 of 1988 is the subject matter of challenge in both the aforesaid revisional applications.

By the order impugned in these two revisional applications, the District Delegate has appointed a Special Officer in a proceeding for appointment of a Curtor u/s 192 of the Indian Succession Act.

There is no dispute that the District Delegate by an order dated February 1, 1995 granted probate in respect of the last will of one Bisweswar Chandra Datta, since deceased, in favour of three joint executors viz. Gurudas Datta, Surajit Ghosh, and Bholadas Datta. There is also no dispute that the testator died on June 5, 1988.

Long thereafter on February 15, 1996 Bholadas Datta, one of the aforesaid executors filled the aforesaid application before the learned District Delegate under Sections 192, 193, 194 and 195 of the Indian Succession Act, 1925 for passing necessary order derecting Asish Datta, the petitoner of CO. No. 1994 of 1999. a legatee under the aforesaid will and son of one of the executors viz. Gurudas Datta, to deliver possession of portion of the property in his possession in favour of the Petitioner Bholadas Datta in accordance with the direction given in the will of Bisweswar Chandra Datta. in the said proceeding, the said Bhcladas Datta filed an application for appointment of Special Officer pending determination of the proceeding and by the order impugned in these two revisionsl applications, the District Delegate has appointed an advocate as Special Officer and he was directed to execute his work alter serving notice to both parties.

Being dissatisfied, Asish Datta and Gurudas Datta have preferred these two revisional applications.

Mr. Bagchi, the learned advocate appearing in support of CO. No. 1772 of 1999 has challenged the order inpugned on the following grounds:

a) A proceeding u/s 192 can be initiation only in the court of learned District Judge and not in the Court of District Delegate.

b) Assuming for the sake of argument that such matter can be delegated to a civil Judge, Senior Division, the learned trial Judge failed to examine the Applicant on oath nor has he complied with the other formalities mentioned in Section 193.

c) The initiation of proceeding after the expiry of six months from the death of the previous owner is barred under the provision of Section 205 of the Indian Succession Act.

According to Mr. Bagchi, the initiation of proceeding being carried no order for appointment of Special Officer can be passed in such a proceeding for the purpose of giving effect to the direction given in the will.

Mr. Z. Islam, the learned advocate appearing on behalf of the Petitioner in CO. 1994 of 1999 has adopted the argument of Mr. Bagchi.

Mr. Ghosh, the learned advocate appearing on behalf of the Applicant/opposite party No. 1 has on the other hand opposed these applications by contending that Asish Datta being one of the legatees under the will, cannot dispute the title of the deceased in the presenty and as such is bound by the terms of the will. According to Mr. Ghosh even if there is some irregularities in the order passed by the learned trial Judge, this Court should not interfere under the provision of Section 115 of the CPC as none of the Clauser mentioned in proviso to Section 115 has been approved. In support of such contention Mr. Ghosh has relied upon a Division Bench decision of this Court in the case of Prayeg Ram v. Ritesh Kumar 92 C.W.N. 691.

Even without entering into first two points I raised by Mr. Bagchi, in my opinion, there applications can be disposed of on the basis of the third point viz. the question of limitition raised by Mr. Bagchi.

According to Section 205 of the Indian Succession Act, any proceeding under part VII of the Indian Succession Act must be made within six months from the death of the proprietor whose property is claimed by right in succession.

In the instant case, the property originally belonged to Bisweswar Chandra Datta, the father of the Applicant u/s 192 of the aforesaid Act. The said Bisweswar Chandra Datta having died in the year 1988 and the instant application having been filed in the year 1996 after the grant of probate of the last will and testament of the said deceased, in my opinion, Mr. Bagchi is right in his contention that initiation of such proceeding is palpably barred by limitation. The Applicant u/s 192 being one of the executors and the probate having already been granted, he is at liberty to take appropriate step before regular Civil Court for carrying out the desire of the testator in terms of the will. But he cannot enforce the direction contained in the will by filing an application u/s 192 of the aforesaid Act. In the facts and circumstances of the present case. Therefore, the District Delegate acted illegally and with material irregularity in entertaining the said proceeding u/s 192 of the Indian Succession Act beyond the period of limitation prescribed u/s 205 of the said Act. Such being the position, the order imugned in these applications thereby appointing a special officer cannot be allowed to stand.

In the case of Prayag Ram(Supra), a Curator was appointed only for three months pending final determination of the main proceeding u/s 192 with a direction to the Curator to make inventory of the properties and to maintain accounts and to take steps for the protectior of the estate. Under the aforesaid circumstances, the Division Bench held that the said order had neither occasioned failure of justice nor did it cause irreparable injury to the Petitioners so as to justify interference u/s 115 of the Code. In the cases before us, the court has already granted propate and by entertaining a patently time barred application u/s 192, the District Delegate has appointed a Special Officer at the instance of one of executors over the estate. In other words, after the grant of probate, the District Delagate overstepped, his authority by Initiating such a proceeding which Is on the face of it harrel under the Saw. Such unauthorised preceding, in my opinion, should be nipped in the bud. Such order has occasioned failure of -justice. Therefore, the aforesaid decision is not application to the fact of the present case.

I, however, make it clear that I have not gone into the question whether Asish Datta, a legatee under the will of Blsweswar Chandra Datta. is entitled to justify his possession in the disputed property or whether he is really in posssessioh in excess of his legitimate right over the property left by the testator.

With the above observation, these revisional applications are allowed. Thus, ! set aside not only the order impugned in these applications but also the proceeding initiated u/s 192 of the Act by exercising my power under Article 227 of the Constitution of India.

In the facts and circumstances there will be, however, no order as to costs.